Judge to decide on allowing appeal over rejection of challenge to permission for cheese plant

A judge will give his decision at a later date on whether to allow an appeal to take place over his rejection of a challenge to planning permission for a cheese manufacturing plant in Kilkenny.

The National Trust for Ireland, An Taisce, had brought the High Court challenge over the Glanbia continental cheese manufacturing plant at Bellview Science and Technology Park. It is to be developed under a joint venture agreement with Glanbia's Dutch partner Royal-A-Ware.

After Mr Justice Richard Humphreys rejected it in April, An Taisce wanted to appeal but, under the system governing these cases, permission must first be obtained from the judge who heard the case who then can grant a certificate for leave to appeal.

This is only if the judge is satisfied that the grounds of appeal identify points of law of exceptional public importance arising from the court's judgment dismissing An Taisce's case against An Bord Pleanála and the State.

The proceedings were against An Bord Pleanála which granted permission for the project in June last year. The developer, Kilkenny Cheese Ltd, was a notice party.

An Taisce claimed the environmental effects of the milk inputs for the cheese plant were not properly taken into account for the purposes of the Environmental Impact Assessment (EIA) and habitats directives.

Meeting the State’s climate targets requires reducing the national herd of cows, not increasing it, and the dairy industry overall is unsustainable due to the adverse environmental impacts created by it, it claimed.

The board and Kilkenny Cheese disputed the claims.

Planning code

Mr Justice Humphreys said in his April judgment An Taisce’s real grievance is with government policy and the issues raised were not a basis for challenging this permission under the planning code.

The Government’s objective seems to be to meet existing Paris Agreement targets on emissions at the lowest possible cost. Reasonable people could disagree about these objectives, but the fact there might be a medley of views does not in itself suggest the official policy is incorrect, he said.

In his submissions to the judge on Tuesday urging him to grant leave to appeal, Neil Steen SC, for An Taisce, said the court had found no contradictory scientific evidence had been presented to the board and it could not then be argued the board acted in a way which left open scientific doubt.

It was his client’s position that deficiencies in scientific evidence may be identified but the judgment seemed to bypass that and say without countervailing evidence it cannot be challenged, counsel said. This was a departure from what had been the leading High Court case relating to this matter and should be resolved by the Court of Appeal, he said.

Milk supply

It was also An Taisce’s view that the judgment tended to conflate two issues in relation to the development it says and the “remote effects” of an increasing need for milk supply, he said.

Emily Egan SC, for the board, said once the scientific evidence issue had not been brought before the board, it could not now constitute grounds for an appeal.

There was nothing far-reaching in the court finding that the overall increase in milk production could be seen as part of this project because it was too remote from the project.

Rory Mulcahy SC, for Kilkenny Cheese, said the overarching issue was that there was a need for certainty in the law in relation to these cases. Counsel disagreed with the board’s claim the judgment had created uncertainty.

An Taisce had mischaracterised the court’s judgment and “botched together” parts of it but had not raised points of exceptional public importance to merit granting leave to appeal, he said.

It was also his side’s view that there was no tension between previous High Court judgment and this judgment.

Mr Justice Humphreys said he would give his decision in due course.